City of Seattle v. Clark

The opinion of the court was delivered by White, J. — This is an action brought by the appellant for the purpose of recovering, from the respondent the sum of $304.69, claimed to be due as. the increased license rate for the sale of intoxicating liquors at retail in accordance with, the provisions, of an amendment to thei city charter of Seattle passed at the general election in March, 1902. Prior to said election the license fee for retail liquor licenses in said city was fixed by. ordinance at $600 per- annum. The freeholders’ charter of the city of Seattle, in addition to the laws for the government, of cities of the first class, originally provided that the city had power: “To> license, tax, confine within limits of time and place to be by the city council prescribed, and to otherwisei regulate the selling or giving away of intoxicating, spirituous, malt, vinous, mixed or fermented liquors, and the collec — 719 — tion of the license money therefrom for. the use of the city; provided, that no license shall he granted to any person or persons who shall not first comply with the general laws of the state in force at the time the same is granted, nor shall any license he granted authorizing the selling or giving away of any such liquors within one mile of any military post or reservation established by the United States, The sum] required for such license shall in no case be less than the amount required by the general laws of the state for houses or business of like character, and no remission of such license shall be made during the period for which it is granted; and bonds required to be given by keepers or proprietors of saloons or drinking houses shall not in any case be fixed at less than two thousand dollars.” Subdivision 32, § 18, of the charter of Seattle. In March, 1902, the people, by a vote of 6,213 against 4,877, amended this charter provision so that after the words “United States” it read: “The sum required for such license shall in no case be less than one thousand dollars, except that licenses for the selling or giving away of such liquors in quantities of not less than one gallon shall -in no case be less than four hundred and fifty dollars, and shall in no case be less than the amount required by the general laws of the state for houses or business of like character, and no remission of such license shall be made during the period for which it is granted and bonds'required to be given by keepers or proprietors of saloons or drinking houses shall not in any case be fixed at less than two thousand dollars.” Since the 8th of March, 1902, said amendment has been a part of the charter of the city of Seattle. On the 4th of Tune, 1901, the city council passed an ordinance, the material portions of which are as follows: “That on and after the date of the passage and approval of this ordinance any license granted' for the sale of intoxicating liquors by the city of Seattle shall be granted with — 720 — a proviso that if an amendment of the city charter which is to be submitted to the people at the next city election to be held in March, 1902, fixing the amount to be paid for such license, shall carry, then each license hereafter granted shall be at the rate provided in said charter amendment from and after the time said charter amendment shall take effect.” On the 10th of January, 1902, the city of Seattle, . through its proper officers, issued to respondent a license to sell liquor at wholesale and retail for the period of one year; collecting from him the sum of $600 as a license fee. As a condition to the obtaining of this license, the respondent was required to sign the following, which was indorsed upon the license: “This license is granted upon the condition that if an amendment to the city charter which is to be submitted to the people at the-next city election to be held in March, 1902, fixing the amount to be paid for licenses1 for the sale of intoxicating liquors, shall carry, then, from the adoption of such amendment, the licensee herein named shall pay for this license for the une-xpired term thereof at the rate fixed by such charter amendment.” There is an allegation in the complaint that there is a balance due under said increased license rate, of $304.69, which respondent refuses to pay, and that he still continues to carry on and conduct his business under1 said license. To the complaint the respondent filed a general demurrer, which, upon argument, was sustained by the court, and, the appellant electing t» stand upon its complaint, judgment for costs was rendered against it. From the order sustaining the demurrer and from said judgment for costs this appeal is prosecuted. It is contended by the respondent that the license fee is but. $600, and that said amendment is void. Two points are relied.upon: First, that fixing by charter amendment — 721 — the license fee was a delegation of the legislative power of the city to the people; second, that, nndetr the laws of the state of Washington, sole and exclusive authority and power to regulate the sale or disposal of spirituous liquors within the corporate limits of the cities of the first class are vested in the mayor and common council, and that the people, by a vote amending the charter, cannot fix the license fee to be charged for the sale of intoxicating liquors. Section 2934, Bal. Code, reads as follows: “The mayor and council or other governing body of each incorporated city, incorporated town, or incorpprated village in the state of Washington shall have the sole and exclusive authority and power to regulate, restrain, license, or prohibit the sale or disposal of spirituous, fermented, malt, or other intoxicating liquors within the corporate limits of their respective cities, towns, or villages: provided, that the annual license fee for the sale of such spirituous, fermented, malt, or other intoxicating liquors shall, in no instance, be less than three hundred dollars or more than one thousand dollars, which said license fee shall be paid annually in advance to the treasurer of the city, town, or village, who shall pay ten per cent, thereof into the general fund of the state treasury, and hand the remaining ninety per cent. into, the general fund of the city, town, or village treasury.” Section 10, art. 11, of the constitution, is in part as follows. : “Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorppration, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed. Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall' so determine, and shall organize in conformity therewith; — 722 — and cities or towns heretofore or hereafter organized and all charters thereof framed or adopted by authority of this constitution shall he subject to and controlled by general laws. Any city containing a population of twenty thousand inhabitants or more shall he permitted to frame a charter for its own government consistent with and subject to the constitution and laws of this state, and for such purpose the legislative authority of s-uch city may cause an -election to be had, at which election there shall he chosen by the qualified electors of said city fifteen freeholders thereof, who shall have been residents of said city for a period of at least two years preceding their election, and qualified electors, whose duty it shall he to convene within ten days after their election and prepare and propose a charter for such city. Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city, and shall become the organic law thereof, and supersede any existing charter, including amendments thereto1, and all special laws inconsistent with such charter. . . .” Section 11 of the same article is as follows: “Any county, city, town, or township1, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” The respondent contends that § 2934, supra, is still in force; that it. is 'a general law of the state, and, under the constitutional provision, the city council is controlled thereby. - It must be remembered that § 2934, supra, was enacted during the territorial period, and if continued in force it is by virtue of the constitutional provision that laws in force.in the territory of Washington which are not repugnant to the constitution remain in force until altered or repealed by the legislatura The section under consideration gave to the; mayor and council or other gov — 723 — erningbody of incorporated cities, incorporated towns, and incorporated villages in the territory of Washington the sole and exclusive authority and power to regulate, restrain, license, or prohibit the sale or disposal of intoxicating liquors within the corporate limits of such towns; ánd it fixed the minimum and maximum amount to be paid for the license, and provided that after it was paid a certain per cent, should be paid to the territorial treasurer. Laws 1888, p. 124, § 2; Bal. Code, § 2934. Tinder § 10, art. 11, of the constitution, the first state legislature classified the cities and towns in the state, and provided by general law for their government. The act approved March 27, 1890, on this subject, is entitled “An act providing for the organization, classification, incorporation and government of municipal corporations, and declaring an emergency.” Laws 1889-90, p. 131. See § 841 et seq., Bal. Code, for general powers under this act of cities of the second, third, and fourth classes. This act divided cities and towns into four classes* — first, second, third, and fourth. Those that on the 1st day of January, 1889, and those that on the 1st day of January in any year after the passage of the act had 20,000 inhabitants, constituted the first class, and they were to be organized and governed under the laws relating to cities authorized to frame and adopt their own charters. Cities with more than 10,000 and less than 20,000 constituted cities of the second class, and cities with more than 1,500 and less than 10,000 constituted the third class. Municipal corporations organized under the act, containing no more than 1,500 nor less than 300, were to be known as “towns,” and constituted cities of the fourth class. Cities of the first class were to be organized and governed according to the laws provided for the government of cities having a population of 20,'000 — 724 — or more inhabitants. Under this act city councils of cities of the second class had “. . . power and authority to, make and pass all by-laws, ordinances, orders and resolutions not repugnant to the constitution of the United States or of the state, of Washington, or the provisions of this chapter, necessary for the municipal government and the management of the affairs of the city, for the execution of the powers vested in said body corporate, and for carrying into effect the provisions of this chapter; to fix and collect a license tax on, and to regulate theaters, . . . melodeon, circus or other performances, . . . where an admission fee is charged, or which may he held in any house or place where wines or liquors are sold to the participators; to1 fix and collect a license tax on and to regulate all taverns, hotels, restaurants, saloons, bar-rooms, hanks, brokers, manufactories, livery stable keepers, express companies, and persons engaged in transmitting letters or packages, railroads, stage and steamboat companies or owners, whose principal place of business is, in such city, or who¡ shall have an agency therein; ... to license, regulate, tax, prohibit or suppress all tippling houses, dram shops, saloons, bars, ban-rooms, raffles, hawkers, peddlers, pawnbrokers, refreshment or coffee stands, booths .or sheds; to prohibit or suppress, or to license and regulate all dance1houses, fandangorhouses, or any exhibition or show of any animal or animals; and to fix and collect a license, tax upon all occupations and trades, and all and every kind of business authorized by law not heretofore specified : and provided, that in the business of selling intoxicating drinks, wines, ales and beers in less quantities, than one quart, or to he drank on the premises where sold, and on auy other business, trade or calling not provided by law to he licensed for state and'county purposes, the amount of license shall be fixed at the discretion of the city council, as they may deem the interests and good order of the city may require. . . . Laws 1889-90, p. 148, § 38 (Bal. Code, § 855). — 725 — The power given by ' § 38 of this act authorizes the governing body, the city council, to fix the amount of the license at their discretion, and as they deemed the interest and good order of the city required. TTo limitation whatever is placed upon their action, as in § 2934, süpra; and, so far as cities of the second class are concerned, there can be no doubt that § 2934 is superseded by § 38, supra. Section 117 of the same act as amended (Laws 1893, p. 103; Bal. Code, § 938, subd. 10) provides that the city councils of cities of the third class shall have power “. . .to license, for purposes of regulation and revenue, all and every kind of business, including the sale of intoxicating liquors, authorized by law, and transacted and carried on in such city, and all shows, exhibitions and lawful games carried on therein and within one mile of the corporate limits thereof, to fix the rate of license tax upon the same, and to provide for thfe> collection of the same by suit or ofherwiseu” The power here given is to' license, “for the purposes of regulation and revenue,” without any limitation, the sale of intoxicating liquors. We think it equally clear that § 2934, supra, so far as cities of the third class are concerned, is superseded by subdivision 10, § 938, supra. The city councils of the cities of the fourth class (amendatory act of 1895, p'. 50, § 1; Bal. Code, § 1011, subd. 10) were authorized “To license, for purposes of regulation and revenue, all and every kind of business* including the sale of intoxicating liquors; authorized by law and transacted and carried on in such town; and all shows, exhibitions and lawful games carried on therein and within one mile of the corporate limits thereof; to fix the rate of license tax upon the Same, and to provide for the collection of the same, by suit or otherwise. — 726 — Here the power is -unlimited to license, for the purposes of regulation and revenue, the sale of intoxica;ting liquors. Ho* limitation is imposed as to* the amount of the license fees We think it also1 clear that. § 2934, supra, so* far as it. relates to. cities, of the fourth class, is. also superseded. On March 24, 1890, the legislature passed an act entitled “An act to provide for the government, of cities having a population of 20,000 or more inhabitants and declaring an emergency to exist.” Laws 1889-90, p. 215. 'This act specifically provides that any city having a population of 20,000 or more inhabitants m'a,y. frame a charter for its own government, and how it shall be framed or amended and submitted to vote of the people*. Section 5 of the act (subdivision 32-34, § 739, Hal: Code) provides: “Any such city shall have* power . . . thirty-second, to regulate the selling or giving away of intoxicating; malt, vinous, mixed or fermented liquors: provided, that no license shall be granted to1 any person or persons who shall not first comply with the general laws of the state in force at the time the same is granted; thirty-third, to grant licenses for any lawful purpose, and to fix by ordinance the amount to he paid therefor; and to provide for revoking the same; provided, that no license shall he granted to* continue for longer than one year from the date thereof; thirty-fourth, to regulate the carrying on within its corporate lim: its of all occupations which are of such a nature; as to affect the public health or the good order of said city, or to disturb tbe public peace; and which are not prohibited by law, and to provide for the punishment of all persons violating such regulations, and of all persons who* knowingly permit the same to. be violated in any building, or upon any premises owned or controlled by them.” ■ . In considering the matter under investigation, all three of these subdivisions should be read together. The fixing of a license fee for the sale of intoxicating liquor is not only — 727 — for the purpose] of deriving revenue, hut for the purpose of regulating the good order and peace of the city. For this reason thei power to revoke licenses once granted is also given. All statutes regulating the sale of intoxicating liquor are enacted in virtue of the police power of the city. This power has been defined as “the function of that branch of the administrative machinery of government which is charged with the preservation of public order and tranquility, the promotion of the public health, safety and morals and the prevention, detection, and punishment of crimes.” Black, Intoxicating Liquors, § 24. The thirty-second subdivision of § 5 of the act last referred to only inferentially provides for a license. It is under the thirty-third subdivision of the section that the power is conferred to grant the license, and the power here conferred expressly provides that the amount without any limitation to he paid therefor shall he fixed by ordinance. Taking into, consideration the laws governing cities of the first, second, third, and fourth classes, heretofore referred to^ relative to granting of licenses, it seems to ns that, so far as such cities are concerned, the provisions of § 2934, Bal. Code, are superseded by the enactments for the governing of these cities and towns. It is not reasonáble to suppose that the legislature would give, as it has done to the cities of the second class, the right to fix the amount of the license “at the discretion of the city council,” and withhold that right from the cities of the first class, and limit and hind such cities to the amount fixed in § 2934, supra. We conclude, therefore, that by the thirty-second, thirty-third and thirty-fourth subdivisions of § 5, governing cities of the first class, the same power is conferred on such cities as is possessed by cities of the second class. This is a reasonable conclusion, for the legislature was providing a. system for — 728 — ‘the government of cities of the first class, and police regulation is essential to complete municipal government, and ■.the constitution authorizes such powers to< be conferred ■upon cities. The proviso' in the thirty-second subdivision of § 5 has no reference to- fixing the license fee, and is nob a limitation on the power conferred by that section on cities of the first class. The general laws of the state provide that noi license for the sale of intoxicating liquors shall be granted without the consent in writing of the owner or lessor of the .building or premises in which the business is to be conducted. It- is to such regulations that the proviso in subdivision 32, § 5, applies. It seems to ns that so far as cities of the first, second, third, and fourth classes are concerned, the provisions of § 2934, Ballinger’s Code, have no application, hut are superseded by the enactment; for the government of these cities. It seemsi plain to us that it was the intention of the legislature by these acts to- leave to these cities the power to prescribe the rule governing the sale of intoxicating liquors in such municipalities, and that § 2931, Id., so' far. as it relates to' such cities, was necessarily repealed. “Every statute must he considered- according to what appears to' have hem the intention of the legislature, and even though two statutes relating to the same subject be not, in terms, repugnant or inconsistent^ if the later statute is clearly intended to prescribe the only rule which should govern the case provided for it will be construed as repealing the original act. The rule does nob strictly -rest upon the ground of repeal by implication, but upon the principle that when the legislature, makes a revision of a particular statute, and frames- a, new statute upon the subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new la.w shall prevail, and what — 729 — ever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions contained in the later act, as the only ones on that subject which shall be obligatory.” Roche v. Mayor, etc., 40 N. J. Law, 257; Murdock v. Memphis, 20 Wall. 590; State v. Carbon Hill Coal Co., 4 Wash. 422 (30 Pac. 728) ; Mansfield v. First National Bank, 5 Wash. 665 (32 Pac. 789, 999). We must look to the city charter and its amendments, and the general laws of the state, other than § 2934, supra, for the rule governing the determination of the question raised by the demurrer. The legislative power of the city of Seattle is vested in the mayor and city council. §1, art, 4, City Charter of Seattle. Every legislative act of the city-of Seattle shall be by ordinance. § 10, Id. Under the general laws of the state, the city of Seattle has power “to grant licenses' for any lawful purpose, and to fix by ordinance the amount to'be paid therefor, and toi provide for revoking the same; provided, that no license shall be granted to continue for longer than one year from the date thereof.” Subdivision 33, § 739, Bal. Code. The only limitation on the power of the city under this subdivision is as to-the time the license' is to run. It may be argued with much plausibility that, in providing that the amount of the license shall be fixed by ordinance, the amount'cannot be fixed in any other way; that the people, the incorporators of the city, have power to act in the premises only through their agents, the legislative branch of the city 'government. The provision requiring the amount of the license tax to be fixed by ordinance is only for the purpose of uniformity and certainty, and may be considered as directory, in the absence of any other provision in the law making it mandatory. The act incorporating cities of the first class expressly provides that it shall be liberally construed for the purposes of car — 730 — rying-out the object -for which the act was-intended. Bal. Code, § 742. There is no provision in the act creating cities of the first class excluding all other ways for' fixing a license fee than by ordinance. The act further provides that the city m!ay frame a charter for its own government, and that such city shall have power to.'provide for general and special elections! for voting upon questions to be submitted. Id., §§ 735, 739. A liberal construction, of a statute expands the meaning of.a statute to embrace cases within the spirit or reason of the law. It is perfectly manifest that it was the intention of the legislature, subject only to the restrictions in the provisos in subdivisions 32, 33, § 739, Id., to leave to the cities of the state, of all classes, full power to regulate the sale of intoxicating liquors within their limits. The license fee charged is a part of' the means of regulating the traffic. Thei fixing of this fee can be regulated as well by a charter amendment as by ordinance; and, if it| is-made uniform and certain in one or the other of these ways, the legislative will of the state in conferring upon the municipality power to govern the traffic is carried out. There is no absolute form of test for determining whether a statutory provision is to he considered mandatory or directory. The meaning and intention of the legislature must govern; and these are to be ascertained not olnly from the phraseology of the provision, but also by considering its nature, its .design, and the consequences which would follow from construing it-one way or the other. Black, Interpretation Laws, pi. 338. “Those directions which are not of the essence, of the thing to be done, but which are given with a view merely to the proper, orderly, ■ and prompt conduct of the business, and by the failure to obey which the rights of those interested will not be prejudiced, are not commonly to be re — 731 — garded as mandatory; and if the act is performed, but not in the time or in the precise- mode indicated, it will still be sufficient if that which is done accomplishes the substantial purposes of the statute” Sutherland, Statutory Com structio-n, § 447. In clothing the people of a city of the first class, as has been done by the legislature under authority conferred by the constitution, with power to frame a charter for their government, legislative p,ower is.conferred upon them, and they constitutionally exercise such power when they frame or amend their charters. The first clause of,,the: act conferring powers upon cities of the first class authorizes the holding of - elections for the purpose of voting- upon questions to-be submitted. The question submitted by the charter amendment in March, 1902, recognized the principles of the referendum. The ordinance of the 4-th of June, 1901, having in contemplation the submission of such an amendment, expressly provided that, if s-uch amendment carried, the license fee should be- as named in such amendment. And it may be s-aid, in view of this provision, that the license fee of $1,000 is also- fixed by ordinance^ and falls literally within the terms of subdivision 33 of section 739, supra. The constitution says that cities may be organized under general laws, and that cities of more than 20,000 inhabitants may frame, their own charters, consistent with and subject to the constitution and general laws o-f the- state-We have seen that there is- no general law of the state regulating the sale of intoxicating liquors in cities. Tho act authorizing cities of the first class to frame charters confers upon such cities, by § 739, Bal. Code, general powers, within the limitations of which charters may be framed or ordinances enacted. One of these powers is the absolute right to regulate the sale of intoxicating liquors, and in such regulation to impose a license fe;e, and permission is — 732 — given, “to. fix by ordinance the amount to> be paid therefor.” The city, in the exercise of its power to. frame a charte?’ within the'limitations, prescribed, restricted the governing body of the city so. that the fee for retail liquor license should not be fixed at less than $1,000; that is., should not be fixed by ordinance at less, than that sum. The city council, by ordinance, declared, in effect, if such an amendment was adopted the minimum license fee' after the adoption of such amendment should be as. fixed in such amendment; thereby fixing by ordinance, as provided in subdivision 33, § 739, the minimum license fee. For a balance due on this minimum fee, after the charter amendment went into effect, the license to. the respondent having been granted in January preceding the amendment, for a year, this suit is brought. Giving to- the act conferring upon cities of the first class power to frame their charters the liberal construction required by the act itself, we think we are justified in holding not only that the license fee of $1,000 is fixed by' ordinance, but that the terms of subdivision 33, § 739, Bal. Code, “and to fix by ordinance the amount to. be paid therefor,” are merely directory, and that the license fee to. bei paid may be also- fixed by charter under the general power conferred upon the city to. amend its charter and to. regulate the sale of intoxicating liquors. “A license to. sell liquor is neither a contract nor a right of property, within the legal and constitutional meaning of those terms. ' It is no more: than a temporary permit to do that, which would otherwise be unlawful, and forms a part of the.internal police system of the state. Hence the authority which granted a license always- retains the power to revoke it, either for due cause of forfeiture, or upon a change of policy and legislation in regard to the liquor traffic. And such revocation cannot be pronounced unconstitutional, either as an impairment of contract obligations, or as unlawfully divesting persons, of their prop — 733 — erty or rights. On this principle, the revocation by a municipal corporation of a license to sell liquor, granted upon certain specified conditions, a violation of which, according to the express terms of the license, should have the effect to revoke it, is not a forfeiture beyond the powers of the corporation; for a license is not property in such sense that a revocation of it may be said to be a forfeiture. And where, by a city ordinance, the city council has authority a.t any time; to annul a license actually issued under its order, a fortiori it may rescind an order granting a license, where the license has not yet issued.” Black, Intoxicating Liquors, § 189. Under the well-known principles laid down in the citation from Black, the right of the respondent to sell intoxicating liquors in the city of Seattle ceased on the adoption of the amendment fixing the license fee at $1,000, unless he complied therewith: See, also', Id. § 190. The demurrer should have been overruled. The judgment of ilia court below is reversed, and this cause remanded for further proceedings in accordance with this opinion with costs to the appellant. Mount, Hadley, and Dunbar, JJ., concur. Fullerton, J., concurs in result.